News24.com | Constitutional Court asked to strengthen independence of prisons inspectorate

Constitutional Court asked to strengthen independence of prisons inspectorate

2020-03-04 18:43

Zoë Postman, GroundUp

The Constitutional Court heard arguments on whether the Judicial Inspectorate for Correctional Services has sufficient independence from the Department of Justice and Correctional Services.

The Constitutional Court heard arguments on whether the Judicial Inspectorate for Correctional Services has sufficient independence from the Department of Justice and Correctional Services. (PHOTO: Zoë Postman, GroundUp)

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

The Constitutional Court was on Tuesday asked to declare unconstitutional sections of the law which limit the independence of the Judicial Inspectorate for Correctional Services (JICS) from the Department of Justice and Correctional Services (DCS) and hinder its role of oversight of the prisons, GroundUp reported.

On 5 September 2019, Judge Nolwazi Boqwana handed down a judgment in the Western Cape High Court which declared Sections 91, 88A(1)(b) and 88A(4) of the Correctional Services Act 11 of 1998, unconstitutional because it infringed on JICS' independence, thereby hindering its ability to perform its oversight duties.

Section 91 states that DCS is responsible for all JICS’ expenses. Section 88(1)(b) states that any matters relating to misconduct and the incapacity of the CEO of JICS must be referred to the national commissioner of DCS by the inspecting judge. Section 88A(4) states that the CEO of JICS is accountable to the national commissioner for money received by the inspectorate.

Sonke Gender Justice then asked the Constitutional Court to confirm the High Court’s order and declare those sections of the Act unconstitutional.

In a statement on Monday, Lawyers for Human Rights, which instituted the proceedings with Sonke Gender Justice in 2016, said the main concern was legislation which required JICS to draw its budget from DCS and made the inspectorate accountable to the DCS for all funds received.

Complete vs perceived independence

As a result, Sonke Gender Justice said in court papers that JICS lacked the independence necessary to perform its functions rationally, effectively and to maintain public credibility.

"For example, Section 91 of the Act states that 'the [Department] is responsible for all expenses of the Judicial Inspectorate'. This has resulted in a situation in which the [Department] determines how much money the JICS shall receive, and what it should be spent on," Sonke Gender Justice said in its papers.

Advocate Nazreen Bawa, representing Sonke Gender Justice, acknowledged that complete independence was not necessary for JICS to perform its function, but said financial, operational and perceived independence were important for JICS to do its duties.

Bawa argued that DCS should not be allowed to employ people for JICS or be involved in its disciplinary processes.

"The very department that is being investigated … should not be regulating the investigator at all, that’s the simple way to put it. The fact that this happens is an operational difficulty," said Bawa.

Judgment was reserved.